Supreme Court steps into Texas political fight

The Supreme Court jumps squarely into the partisan battles of 2014 Monday, refereeing a legal fight that could help determine whether Republicans take control of the House of Representatives.

Texas, by virtue of its expanding population, is entitled to four new seats in in the House, bringing its total to 36. Nearly 80 percent of that growth came from an increase in the state's Latino and African-American populations, groups that tend to vote for Democratic candidates. But the Texas legislature drew a new map of congressional districts that virtually guaranteed three of the new seats to Republicans. Civil rights groups immediately sued, and a federal court came up with a map of its own on an emergency basis for this year's elections.

Both sides are asking the Supreme Court to rule by early February on which map to use -- the one drawn up by the Republican controlled legislature, or the court-drawn map, which would likely give Democrats more of the new seats. Due to its history of discriminating against minority groups, Texas is among the states required to get permission for any change in its election process. Texas opted to seek that approval from a federal court in Washington, D.C., but several Democrats and civil rights groups filed a separate lawsuit in Texas to block the new map. It is that case which is before the Supreme Court.

The state argues that the Texas court exceeded its authority in drawing up its own map and should have ordered instead that the legislature's map would be used on an interim basis for the 2014 election, while the state pursues permanent approval for its redistricting plan.

The Texas court, argues Paul Clement, the lawyer for the state, should not have tossed out the legislature's new map and substituted one of its own.

"Redistricting is an inherently political process," Clement said. "In the absence of some violation of statutory or constitutional law, it is wholly committed to the discretion of state legislatures."

However, the groups challenging the revised state map say the legislature went out of its way to dilute the voting power of Latinos and African-Americans by splitting up politically active portions of those populations and replacing them with residents who tend not to vote.

"Although Hispanics and African Americans together now outnumber Anglos in Texas, the congressional redistricting plan the legislature enacted actually reduced the number of districts in which minority voters would be able to elect their candidates of choice," says John Devaney, a lawyer representing the challengers.

The state's plan, Devaney said, reflects an effort to "pick off, split up, and drown out minority voters to ensure that minority population gains would not translate into minority electoral gains."

The case also involves a challenge to the state's plan for redrawing districts for state legislative elections. Both sides urge the court to act with unusual speed. "Usable maps must be in place by February 2, 2012, even in order for the delayed primary elections to go forward," Clement said.

Lurking in the background of the case is the future of a key part of the federal Voting Rights Act. Section 5 requires states with a history of discrimination to get permission, known as preclearance, before changing any of their election procedures. While Texas does not challenge the constitutionality of that provision directly, some civil rights advocates worry that the case could present an invitation for the justices to strike it down.

The Supreme Court came close to weakening Section 5 in a 2009 decision, also involving a Texas voting change. While the justices declined to overturn the preclearance requirement, several suggested it may no longer be needed.

"Things have changed in the South," wrote Chief Justice John Roberts. "Blacks now register and vote at higher rates than whites," he said, in some covered states. Roberts said the historic accomplishments of the law are undeniable, but added the federal burdens it imposed "must be justified by current needs."

The civil rights groups challenging the new Texas congressional map urge the court to steer clear of reviewing Section 5.

"The question whether those burdens are justified is neither raised nor necessary to a decision," says John Devaney, the lawyer for the groups. "It must be left for another day."

Many legal scholars doubt the Supreme Court will reach the Section 5 question in this case.

"The court recognizes that it must act more quickly than usual, given the time pressures involved with primary elections looming shortly down the road. For all those reasons, the court is likely to focus on the narrowest issues needed to resolve the particular legal issues presented," says Prof. Richard Pildes, an election law expert at the New York University School of law.